WITH LIBERTY AND JUSTICE FOR SOME

A thoughtful but ultimately unpersuasive attack on recent Supreme Court decisions. In The Politics of Law (1982), Kairys (Law/Temple University) argued that ``law is simply politics by other means.'' Similarly, he now debunks the idea that the rule of law has any rational basis other than the disparate political and cultural views of judges who make legal decisions. Kairys argues that for both liberal and conservative judges, ``loyalty to supposed legal principles—both substantive principles and principles of decision making—is selective, value-laden, and result-oriented.'' Although this disturbing conclusion appears overstated—while politics informs law, and decisional law is sometimes inconsistent, many would argue that legal rules have some objective basis—it lies at the heart of the author's analysis of the Supreme Court's decisions on the First Amendment, privacy, due process, and equal protection. Kairys rightly points out that the current Supreme Court is very much an activist court, seeking to limit access to federal courts and to curtail substantive rights. He also adroitly skewers the many internal inconsistencies, tortured misreadings of statutes and precedents, and even logical absurdities underlying recent Supreme Court decisions. The difficulty with his argument is that once he's postulated that legal reasoning is merely a value-laden rationalization for preconceived results, he loses any principled basis on which to criticize the reasoning of decisions that he disagrees with, except to point out that he has different values. Kairys doesn't so much argue as make a series of conclusive statements, some persuasive but most not. As he candidly admits, ``my analysis provides no more a determinate set of rules than the formulations that I have criticized.'' Kairys's anarchic vision of judicial decision-making is troubling, but he's on target in pointing out the Supreme Court's apparent agenda and its effect on recent decisions.